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2019 DIGILAW 2691 (ALL)

Shikher Bhandari v. State of U. P.

2019-12-03

RAMESH SINHA

body2019
JUDGMENT : 1. Heard Sri Arvind Srivastava, learned counsel for the applicant and Sri Irshad Hussain, learned AGA for the State and perused the record. 2. This application under Section 482 Cr.P.C. has been filed for quashing the impugned FIR dated 04.09.2019 registered as Case Crime No.0309 of 2019, under Sections 468, 471, 406, 506, 467, 420, 419 I.P.C., Police Station Kotwali, District Azamgarh. 3. Learned AGA raised preliminary objection regarding the maintainability of the prayer made in the present 482 Cr.P.C. Application by the applicant and has stated that as the applicant has prayed for quashing of the FIR in the present 482 Cr.P.C. Application, the same is not maintainable as the petitioner has a remedy of filing a writ petition under Article 226 of the Constitution of India for the aforesaid prayer. 4. Learned counsel for the applicant in reply to the preliminary objection raised by the learned AGA has submitted that through out the country a petition challenging a first information report and the proceedings initiated by it is maintainable and can be entertained by this Court in 482 Cr.P.C. Application. He submitted that the scope of Section 482 Cr.P.C. is not confined to any proceedings of the Court only but it is also to secure the ends of justice and to protect the gross abuse of process of law. The power of High Court to exercise its jurisdiction is not limited to any provision of alternative forum and in this regard he has placed reliance of the Judgment of the Apex Court in the case of Asian Resurfacing of Road Agency Private Ltd. and another Vs. Central Bureau of Investigation, 2018 (16) SCC 299 at page 332, the Apex Court observed in paras 52 and 54 which are as under: "52. The question as to whether the inherent power of a High Court would be available to stay a trial under the Act necessarily leads us to an inquiry as to whether such inherent power sounds in constitutional, as opposed to statutory law. First and foremost, it must be appreciated that the High Courts are established by the Constitution and are courts of record which will have all powers of such courts, including the power to punish contempt of themselves (See Article 215). The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it. The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it. In an instructive passage by a Constitution Bench of this Court in re Special Reference 1 of 1964, (1965) 1 SCR 413 at 499, Gajendragadkar, C.J. held: "Besides, in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. "Prima facie", says Halsbury, "no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court" [Halsbury's Law of England, Vol. 9, p. 349]. 54. It is thus clear that the inherent power of a Court set up by the Constitution is a power that inheres in such Court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constitution itself, inter alia, under Article 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution. This being the constitutional position, it is clear that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition filed before the High Court under Section 482 of the Code of Criminal Procedure, the non-obstante clause in Section 19(3) applying only to the Code of Criminal Procedure. The judgment of this Court in Satya Narayan Sharma v. State of Rajasthan, (2001) 8 SCC 607 at paragraphs 14 and 15 does not, therefore, lay down the correct position in law. The judgment of this Court in Satya Narayan Sharma v. State of Rajasthan, (2001) 8 SCC 607 at paragraphs 14 and 15 does not, therefore, lay down the correct position in law. Equally, in paragraph 17 of the said judgment, despite the clarification that proceedings can be "adapted" in appropriate cases, the Court went on to hold that there is a blanket ban of stay of trials and that, therefore, Section 482, even as adapted, cannot be used for the aforesaid purpose. This again is contrary to the position in law as laid down hereinabove. This case, therefore, stands overruled." 5. He further relied upon another case of the Apex Court wherein the Apex Court entertained a petition challenging a first information report under Section 482 Cr.P.C. and has drawn attention in the case of Ajay Mitra Vs. State of M.P. and others, (2003) 3 SCC 11 . He also has relied upon a judgment of the Apex Court reported in the case of State of Telangana Vs. Habi Abdullah Jeelani and others, (2017) 2 SCC 779 wherein the Apex Court has observed in paras 11 and 13, which are as under:- "11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. 13. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court." 6. He next has placed reliance of judgment of the Apex Court in the case of Vaijnath Kondiba Khandke Vs. State of Maharashtra and another, AIR 2018 Supreme Court page 2659 wherein it has been held in para 4, which is as under: "4. That the appellant as well as said Vidya Ghorpade filed Criminal Application Nos.4724 of 2017 and 5174 of 2017 respectively under Section 482 of Cr.P.C. seeking quashing of the aforesaid FIR. It was submitted that the allegations in the FIR were absurd and inherently improbable and did not make out any case against the applicants. Around this time, the applications preferred by the applicants for anticipatory bail were accepted with certain conditions. The applications preferred under Section 482 Cr.P.C. were thereafter taken up for hearing. The High Court accepted the plea made by Vidya Ghorpade and quashed the proceedings against her. However, Criminal Application No.4724 of 2017 preferred by the appellant was dismissed by the High Court vide its judgment and order dated 23.01.2018 which is presently under appeal. It was observed: "The facts herein indicate that, there was no direct abetment and the applicants cannot have any intention that the deceased should commit suicide. Even when the accused persons have no such intention, if they create situation causing tremendous mental tension so as to drive the person to commit suicide, they can be said to be instigating the accused to commit suicide....." 7. He also cited and relied upon the judgment of the Apex Court in the case of Naman Singh alias Naman Pratap Singh and another Vs. He also cited and relied upon the judgment of the Apex Court in the case of Naman Singh alias Naman Pratap Singh and another Vs. State of U.P. and others, (2019) 2 SCC 344 , wherein the Apex Court has observed in para 9, which is as under:- "9. In view of the scheme of the Code as discussed, we have purposely refrained from going into the merits of the case so as not to prejudice either parties and also keeping in mind the nature of the jurisdiction under Section 482 of the Code. Any application by respondent no.4 hitherto under the Code will therefore have to be considered by the appropriate authority or forum in accordance with law. For the reasons discussed, the impugned order is held to be unsustainable and is set aside. The First Information Report therefore also stands quashed for the reasons discussed, but with liberty as aforesaid." 8. Heard learned counsel for the petitioner and examined the rival submissions on the aforesaid issue and further perused the record. 9. The aforesaid issue regarding the maintainability of a quashing of FIR in exercise of powers under Section 482 Cr.P.C. by this Court was referred and decided by a Full Bench of this Court in the case of Ram Lal Yadav Vs. State of U.P., reported in 1989 Criminal Law Journal page 1013 wherein it has been categorically held that unless there is a matter pending before the subordinate court, no application under Section 482 Cr.P.C. can be entertained by the High Court. In other words it means that till the stage of investigation of a criminal case, and thereafter till the filing of the charge-sheet and taking cognizance offence by the Court, no application can be made in the High Court for quashing of the first information report or investigation under Section 482 Cr.P.C., however, in very exceptional cases the writ jurisdiction of the High Court under Article 226 of the Constitution of India can be invoked either for quashing of the first information report or for staying the investigation. The Full Bench while considering the aforesaid point has further referred to the cases of the Apex Court which have been delivered after the judgment of the Full Bench in Ram Lal Yadav case (1989) Criminal Law Journal 1013 (supra) none of the Supreme Court Cases considered the question whether jurisdiction of the High Court could be invoked under Section 482 Cr.P.C. while a criminal case was still being investigated. Similarly, the case laws which have been cited by learned counsel for the petitioner referred above also not deciding this point in any of the judgments and any observation that either in its jurisdiction under Article 226 of the Constitution of India or under Section 482 Cr.P.C. in a suitable case the High Court could grant relief for just an observation of the Supreme Court to indicate that the High Court could exercise its inherent power under Section 482 Cr.P.C. or extra jurisdiction under Article 226 of the Constitution of India to interfere in a suitable matter pending investigation. This observation only meant that the power under Section 482 Cr.P.C. could be exercised in some proceedings arising out of a complaint etc. when the matter is pending in some Court and the jurisdiction under Article 226 of the Constitution of India could be exercised when the matter had till then not reached the Court but was still under investigation by a Police Officer. The judgment and observations of the Supreme Court are not at all contrary to the judgment of the Full Bench in the case of Ram Lal Yadav (supra) and it cannot be said that the said observation of the Supreme Court permit any High Court to exercise its power under Section 482 Cr.P.C. when the matter still investigation. The Supreme Court as a matter of fact has quoted Ram Lal Yadav's judgment of the Full Bench of the Allahabad High Court in the case of Janta Dal Vs. H.S. Chauhan (1992) 4 SCC 305 . This paragraph in the aforesaid case has been quoted only to indicate that the similar view which the Supreme Court was taking had already been taken by the High Court in the said Full Court. As such the case of Ram Lal Yadav's case (supra) has been given a seal of approval by the aforesaid judgment of the Supreme Court. 10. As such the case of Ram Lal Yadav's case (supra) has been given a seal of approval by the aforesaid judgment of the Supreme Court. 10. Thus, the conclusion is inevitable that an application under Section 482 Cr.P.C. in the High Court for quashing of the first information report of the investigation is not maintainable in the High Court unless the charge-sheet has been filed and the Court had issued process on the basis of the charge-sheet. Up to that stage only in a suitable case a petition under Article 226 of the Constitution of India alone can be filed in the High Court. 11. A similar view has been taken in a privy counsels' decision in Emperor Vs. Khwaza Nazir Ahmad, AIR, 1945 PC 18 in the said decision the Privy Council has held that the police has a statutory right under Sections 154 and 156 Cr.P.C. to investigate the offense, that the High Court cannot interfere in exercise of inherent power under Section 561-A (now Section 482 Cr.P.C.) and that interference can be made only when the charges preferred before the Court and not before. It was observed that there is statutory right on the part of the police to investigate the circumstances of alleged cognizable crime without requiring any authority from the judicial authorities and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under Section 561-A old Cr.P.C. (now Section 482 Cr.P.C.). 12. The decision of the Privy Council in Emperor Vs. Khwaza Nazir Ahmad (supra) was followed by the Apex Court in the case of S.N. Sharma Vs. Vipin Kumar Tiwari, (1970) 1 SCC 5653 wherein it was held that though the Court of Criminal Procedure gives to the police unfettered power to investigate all cases where the suspect that the cognizable offense has been committed, in appropriate cases and aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution of India under which if the High Court could be convinced that the power of investigation has been exercised by the Police Officer, mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. In the case of State of Haryana Vs. In the case of State of Haryana Vs. C. S. Bhajanlal, 1992 Suppl (1) SCC 335 in this case the High Court of Punjab and Haryana had quashed the entire criminal proceedings inclusive of registration of the FIR on the basis of the complaint preferred by Mr. Dharampal making certain allegations against Chaudhary Bhajanlal. The matter which were issued in Full Bench case of Ram Lal Yadav (supra) was not an issue before the Apex Court in Chaudhary Bhajanlal's case (supra) which was said in para 84 of the judgment at page 625: "84. The nagging question that comes up for examination more often than not is under what circumstances and in what categories of cases, a criminal proceeding can be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution of India or in the exercise of inherent powers of the High Court under section 482 of the Code....." 13. In other words, when certain question is neither raised nor argued that discussion by the Court even after pondering over the issue in depth would not be a binding precedent. The observations of the Apex Court in the case of State of Haryana Vs. Chaudhary Bhajanlal (supra) have been misinterpreted. Thus, also the case laws of the Apex Court relied upon by the learned counsel for the applicant cannot be of any help to the applicant as the Apex Court did not categorically say anywhere that both the options were open in both types of cases, i.e., where investigation is pending and where the proceedings are pending in Criminal Courts. 14. Thus, the submission advanced by learned counsel for the applicant regarding the preliminary objection raised by learned AGA regarding the maintainability of the present 482 Cr.P.C. Application for quashing of the FIR is not at all acceptable in view of the judgment of the Full Bench decision of this Court in the case of Ram Lal Yadav (supra) which has been followed by a Division Bench in the case of A. S. Bindra Vs. Senior Superintendent of Police, Dehradun and others, reported in 1998 Criminal Law Journal 3845 in which again an identical issue was raised and decided by following the judgment in the case of Ram Lal Yadav's case (supra). 15. Thus, the present 482 Cr.P.C. Application is not maintainable, accordingly, the same is dismissed at this ground alone.